If a client tells their lawyer they are depressed and plan to commit suicide many ethical issues are raised. This is confidential information given to lawyer from the client; however, what is the appropriate action to take if the lawyer believes that the client will likely try to follow through on the suicidal thoughts? In this situation, should the lawyer disclose this information to family members, mental health professionals or others who can prevent the client from harming themselves?

The below examines the issue from a  U.S. perspective,  domestically under the CBA, and finally within Ontario’s LSUC. It also examines a notation of  an SCC decision relating to this issue in the framework and context of Quebec obligations.  

 See Alaska Op. 2005-1:

ALASKA BAR ASSOCIATION ETHICS OPINION NO. 2005-1

Responsibilities of the Attorney Representing a Client Who, After Being Charged with a Felony Offense, Informs the Attorney of the Client’s Intent to Commit Suicide if Convicted

Question Presented

The Alaska Bar Association joins the American Bar Association and the several other state bar associations that have addressed this issue. These associations have determined that disclosure of a client’s suicidal intent is permissible.(2)

Analysis

Generally, an attorney may not reveal a confidence or secret concerning the representation of a client without the client’s explicit or implicit consent. ARPC 1.6(a).(3) Of course, there are exceptions where the client engages in criminal or fraudulent conduct, or raises a claim against the attorney.(4) Those exceptions, however, do not apply to the facts here because suicide is not a crime in Alaska. Because no crime or fraud is involved, it may appear that Rule 1.6 prohibits the disclosure of the client’s suicidal intent.(5)

In our opinion, Rule 1.14(b) permits disclosure of such information and in this particular circumstance, overrides the prohibitions set forth in Rule. 1.6. Cf. 74 Conn. B.J. at 240.

Rule 1.14(b) comes into play “when the lawyer reasonably believes that the client cannot adequately act in the client’s own best interest.”(6) In those circumstances, the lawyer either may seek the appointment of a guardian or “take other protective action.” See Rule 1.14(b) (emphasis added). The Committee interprets the phrase “take other protective action” to permit disclosure of the client’s stated intent to commit suicide if the lawyer reasonably believes that the client intends to carry out the threatened suicide if sent to jail. Put another way, any differing interpretation of “other protective action” would defeat the purpose of Rule 1.14(b) – namely, protecting the health and safety of a client who the lawyer reasonably believes is unable to act in his or her own interest.

The Restatement recognizes an exception to the general duty of confidentiality and client disclosure based upon “the overriding value of life and physical integrity.” Comment b., Restatement (Third) of the Law Governing Lawyers § 66. Other states that have addressed this issue frame the attorney’s act of disclosure in such a situation as reflective of “certain principles of conduct that a lawyer is obligated to uphold by the very nature of their office and its relationship to society.”

These principles of conduct are the threads of our social fabric. None is more basic than society’s concern for the preservation of human life. A lawyer cannot be unmindful of that concern.

N.Y. St. Bar. Assn. Comm. Prof. Eth. Op. 486 (1978). That basic principle – “society’s concern for the preservation of human life” – is the foundation upon which each of the seven other state bar associations and the American Bar Association have based their conclusion that an attorney may disclose to the proper